Featured Guest Blogger: Lyle Denniston

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Of “Standing” and “Injury” and Something Called “Ashwander Doctrine”Peering Through the Looking-glass at the Constitutional Challenges to “Obama-care”

When Americans join in a hearty fight over a major public policy, they usually prove that Alexis de Toqueville was right. The shrewd French observer of life in America wrote in 1831: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” With the sweeping new federal law on health care, that happened sooner: within moments after President Obama signed the measure into law, its constitutionality was challenged in federal courts in Michigan, Virginia and Florida.

Even before those lawsuits were filed, a rising stack of scholarly papers explored the constitutional challenges that might be pursued and, as expected, they disagreed not only on what the questions should be, but how they could come out.

With the new lawsuits actually underway, what will unfold in the courthouses will be in stark contrast to the messy process in Congress in getting “Obamacare” enacted. Judicial review will be orderly, well-mannered, even sometimes boring, and it may take a good deal longer than the 14 months it took the Obama Administration and congressional Democrats (they had no Republican help) to get the law onto the statute books. And, if Americans found it baffling to deal with such arcana in Congress as “reconciliation,” “self-executing rule,” and “deem and pass,” they should not be surprised if they now confront in the courts such unfamiliar words and phrases as “standing,” “ripeness,” “case or controversy,” “Ashwander doctrine” (or, a variation of that, “constitutional avoidance”), “deference,” “rational basis,” “federalism,” “separation of powers,” and “severability.”

What those words and phrases suggest, in plain English, is that the challengers may have a hard time getting the courts even to consider the constitutionality of the new law, and, even if the courts do opt to grapple with that ultimate question, it may be very hard to convince them that the law must be struck down.

Although some Americans may well believe that one need only file a lawsuit on a constitutional question to get it answered, even if it takes a while, the reality is that deciding a constitutional question is the last thing that courts are prepared to do. If they can decide a case on any other legal basis, they will feel obliged to do so, and will. In fact, they may even stretch the meaning of a law — at least a bit — in order to avoid facing the choice to strike it down. That is what is known as the “Ashwander doctrine,” from an opinion by Justice Louis D. Brandeis in a 1936 Supreme Court decision, Ashwander v. Tennessee Valley Authority.

But that constitutional reticence only begins to work if a case is, in fact, within the power of a court to decide in the first place. The Constitution requires that there be an actual, live dispute between the two sides. And, to make sure that there is, courts will refuse to decide a case in which no one can show that they actually will be harmed by the action they challenge, or a case in which such harm is only a matter of speculation, or in which the harm might arise — if at all — only at some point in the future.

To see how those limitations work in a real-world situation, and then to examine what might actually happen on the constitutional question if the courts do decide it, one can look at one of the most criticized parts of the new health care law, and then look at an individual who is actually challenging that part.

In order to assure that health care is available at affordable rates to many Americans who do not have it now, the law actually uses a form of mild coercion to get millions more covered. If an individual does not now have health insurance, the law will (with some exceptions) require that person to obtain a policy. If the individual fails to do so, he or she is at risk of a penalty, in the form of a tax. These provisions make up what is usually called the “individual mandate.” (Keep in mind as a potentially key factor: this does not take effect until the last day in 2013, well over two years away.)

Although only one part of the new law, this mandate is a crucial one: in order to make the overhaul of the health care system work, participation has to be very wide, if not actually universal. If the courts were to strike down the individual mandate, then the whole law may be shaky, if not seriously impaired.

Some of its critics insist that the mandate is an unprecedented form of government compulsion: never before, they say, has Congress actually tried to force an American to buy some economic product or service; if it can do this, they suggest, why couldn’t Congress mandate that an American buy a General Motors car to help out the auto industry? In fact, some of the critics contend that what Congress actually has done is to impose a penalty for doing nothing — that is, going through life without health insurance.

Nowhere in the Constitution — not in Congress’ power to control economic activity, its power to raise money, or its power to impose taxes — is there any authority to lay down such an economic purchase requirement, the critics say.

Of course, all of their arguments have drawn fervent disagreement. Relying on Supreme Court precedents that originated in the 1930s and 1940s and remain largely intact, supporters of the mandate suggest that Congress clearly has authority to regulate the health insurance industry, because it affects the entire economy, and it clearly has the discretion to choose the method of making its “reform” of that industry enforceable — with a tax, if that is necessary.

One of the individuals who joined in one of the new lawsuits is John Ceci, who lives in Livingston County, Mich. He does not have private health insurance. As a veteran, though, he is eligible for some health care benefits from federal veterans’ care programs. But, he contends, he is in the lowest priority rank for enrollment, his benefits are not guaranteed, and he could be cut off from those benefits. For a three-year period, in fact, his benefits were cut off. If the new law passes, he has argued, the demand for veterans’ benefits will rise, and he will be cut off again.Ceci has insisted, however, that he will not buy private health insurance and he does not want to be forced by the federal government to do so.

His pathway in court to a decision on the constitutionality of the individual mandate, however, could be a difficult one to navigate. He won’t be affected until 2014, and maybe not even then. The future of his veterans’ governments is not yet settled. And, even if he should be without insurance in 2014, will the government actually enforce the new mandate against him personally?

Assume, though, that the federal judge hearing his case decides that Ceci’s legal situation is predictable enough, so the case can go forward to resolve his legal complaint. Might there be another way to deal with his specific situation than striking down the entire mandate? If not, then, did Congress have the authority to impose the mandate?

In answering that ultimate issue, the judge will first have to decide what kind of government action Congress has actually undertaken in imposing the individual mandate. If it is a form of economic regulation, that is a field of congressional action that the courts are most likely to allow, without heavy second-guessing. Is that power, however, as broad as is usually thought, if Congress is found to be giving direct orders to an individual to do something against his will? If the judge should find that the mandate actually intrudes deeply into the way Ceci wants to live his personal life, what in the Constitution gives Congress the power to do that, and, if it does, are there any limits? Is it different, say, from requiring an individual to have a driver’s license in order to operate a car or truck?

Then the judge will have to examine what the penalty is, for an individual who simply refuses to obtain health insurance and thus has none at all. Is it a tax, or something like a fine for a traffic violation? Does Congress have the power to use the tax code to force an economic choice on an individual?

It is, of course, conceivable that John Ceci will win his case, and get a court order that upholds his right not to buy private insurance, and strikes down either the mandate or the tax, or both. However, that would only be the first rung on the court ladder. There would still be a federal Court of Appeals to go over the same ground that the trial judge did. And then the loser could try to get the case before the Supreme Court.

And none of this process in the courts will go to a final decision if, in the meantime, the political equation in America changes, the Republicans take control of Congress, and succeed in repealing the individual mandate. There is, thus, much more to this story than the filing of three lawsuits in federal court in March 2010.

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